Too many forms to fill in for the $350,000

Delays in legal aid payments because of new computer procedures are causing problems for lawyers unable to pay their bills or further their clients’ cases.

Wellington specialist civil liberties lawyer Michael Bott said complicated new computer procedures and new forms that had to be filled in were delaying the payout of fees to lawyers, who were struggling to pay their own bills.

“Lawyers have rent or mortgages and they have to pay staff and sometimes the payments have been delayed weeks.”

The forms had become so complicated that the amount of time spent filling them in might not be worth the payment a lawyer ultimately got, he said.

Mr Bott earned more than $348,000 in legal aid for the July 2009 to June 2010 year.

I actually had some sympathy for legal aid lawyers up until Mr Bott implied that the amount they earn is so trifling it is not worth the time to fill in the forms.

The Legal Services Agency is obviously having some transition issues, and they should be able to process and pay promptly. But lawyers don’t do their case any good, by complaining that the amount they earn may not be worth the paperwork, when their earnings (just from legal aid) was $348,000.

bhudson

Why would the man – who presumably believes in justice and rule of law – complain about systems that ensure that taxpayer funded legal services are properly managed and accounted for? Is he concerned about services to the clients, or the loss of ‘easy money’?

The man needs to remember his responsiblilties to those paying his way on legal aid funded cases.

david

scrubone 10:10
“Well, if it takes an hour to fill in a form to get back the payment for one hours services, that clearly woudn’t be worth it would it?”

If spending an hour that I could charge only $100 or a bunch of carrots to a bearded hippie or had no other client to charge got me $400 from Legal Aid Services, then it would be definitely time well spent. You are assuming that Mr Bott is in the position of turning away business. Given the number of lawyers in our society I just cannot believe that.

bhudson

scrubone,

I absolutely agree on balance and that the public service does not seem to be incented to attain it. I think these particular changes around legal aid funding may be as a result of the report into legal aid a few months ago which highlighted how easy it was to game the system.

This is a pure political play by Bott – a Labour candidate – to try and discredit the govt (even in a very small way such as this.) That just makes his whingeing about having to fill in a few forms to get $350k of taxpayer money all the worse.

Chrish

Was the $350k his personal income, or income generated for his business from which he must pay his staff and business expenses? Probably the later if the sum comes from the Legal Services Agency payment data.

I have heard from a lawyer friend that it can take 2hrs to complete the paperwork to apply for 3hrs funding. But I have no first hand knowledge of this.

F E Smith

The implication in both the newspaper article and this comment it is a bit misleading and shows a misunderstanding of how legal aid works.

The sum of $348,000 is not Mr Bott’s take home pay. It is the gross payment made by the LSA to the business. The sum includes GST, as well as including any disbursements that Mr Bott may have had to make in advancing his client’s interests. So if an expert was instructed to prepare a report, for example, then that cost is included in that figure, any travel, accommodation or other costs that often form part of a case. This is especially true of someone who is a specialist in their field.

Whilst a legal aid lawyer can earn a lot of money, the fact is that such an income is achieved through working far more than a 40 hour week, and often far more than a 60 hour week, similar to many other professionals that may earn similar amounts of money. Additionally, the lawyer’s pay rate for legal aid is routinely half to a third of their usual charge out rate. So you can see what Mr Bott’s earnings would be if the legal aid work was funded at normal private rates.

The fact is that legal aid lawyers provide their services at a significant discount to the Government, far more of a discount than many other people (like teachers) are willing to make while engaging in what is a public service provided by a private contractor.

The forms are a headache, and admins costs have always been high. This is recognised by the NZLS in a recent statement:

“Lawyers also said that they were concerned that in some areas of New Zealand experienced lawyers may choose not to apply for approval under the new system due to the increased compliance requirements, and past inefficiencies and frustrations with the Agency’s administrative systems.”

The Society notes its concern that legal aid providers’ morale has never been at such low levels.

“Reform fatigue is rife, and a large number of lawyers felt it was pointless for them to engage in consultation because their views would not be listened to or addressed. Lawyers in a number of areas are facing consultation on, or implementation of, numerous policy and legislative decisions at once. This includes new invoicing systems, introduction of new case assignment processes, extension of the Public Defence Service, secondary provider changes, the Legal Services Bill, and the quality framework,” the submission says.

“Most lawyers provide an exceptional level of service under the legal aid system for remuneration levels that are significantly less than market levels and to clients who, while frequently more vulnerable, are often also more difficult and time consuming than clients who pay privately.”

And before anybody laughs, just think what would happen if all of the legal aid lawyers (you know, that thieving 10% of the profession, 15% if you include family law legal aid lawyers) stopped doing it and only took private work.

Manolo

F E Smith

david: what if that 1 hour filling out the paperwork was on top of the 3 3/4 hours of work (on average) that you had done to earn that $400, thus reducing your pay rate by almost a quarter. If I have my maths correct.

So, let’s say you earn $20 per hour for a 40 hour week, but then have to spend 10 hours a week of your own time filling in paperwork to actually recieve the money you have earned. Which will then be paid when the LSA gets around to it, in a few weeks time. Unless they take longer. That doesn’t seem fair to me.

Atheist1

Nick R

A couple of comments. First, the amount paid in legal aid to a lawyer is gross revenue – not profit. So the lawyer has to pay the costs of running a business out of that. This may involve the cost of retaining other lawyers to do some parts of the work. So you can’t look at the total paid and draw the conclusion that it is pure income or profit.

Second, the difficulty of getting legal aid approved is putting a lot of lawyers off doing any legal aid work at all. The amount of work you are paid for is almost always a lot less than the amount you have to do, and it compares very poorly to what can be earned elsewhere. It can also take a long time to get paid. So – unless you cannot find clients who can afford to pay their own fees, you are going to be reluctant to incur the time and hassle of legal aid work.

F E Smith

bhudson: does a lawyer really have to believe in justice or the rule of law? I don’t see where that really comes into our job. Sure it is a philosophical basis for the way Parliament and the Courts operate, but it isn’t our responsibility. We just work to implement the rules as set down for us by those august Politicians and Judges.

Justice and the rule of law be damned, legal practice is merely about about rules and procedures!

GPT1

I have no idea who Bolt is but you would do well to focus on some facts. Try these:
1. The hourly rate is what it was (actually slightly less) than it was in 1990 – how would your company go if you were restricted to charging 1990 rates (was there even polling in 1990?)
2. What you “earn” is misleading. That is what you have been paid by LSA. It includes all disbursements (including experts who can run into $10k plus) and any juniors working under you or in the case of a firm all staff.
3. How is it sensible to be wanking on about the cost of providing legal aid (a government created monopoly incidentally) when the costs of providing it continually increase both in terms of LSA and compliance for lawyers. Not so many years ago the administration of the system was done for free by lawyers. Now it is in excess of 10% of the cost of the scheme. Good work.

So maybe dial back the sarcasm and stick to what this blog is usually good at – looking behind sensationalist headlines.

Auberon

“And before anybody laughs, just think what would happen if all of the legal aid lawyers (you know, that thieving 10% of the profession, 15% if you include family law legal aid lawyers) stopped doing it and only took private work.”

Well F E Smith, rorts like the Wai 262 flora and fauna case would dry up for a start. How long’s that been going on, stuffing legal aid into the pockets of the likes of Donna Hall and Annette Sykes? Must be close to 12 years.

F E Smith

Auberon: except when the investigation into Legal Aid was done it was concentrated solely on criminal legal aid providers. That means that nobody seems to think there is a problem in the civil or Treaty fields.

Even though the lawyers who earn the most from legal aid practice mostly in those two areas.

queenstfarmer

bhudson

Nick R,

“The amount of work you are paid for is almost always a lot less than the amount you have to do, and it compares very poorly to what can be earned elsewhere.”

If that is true – and I am not doubting you – then there must be other reasons why people choose to undertake the work. While there may be a degree of altruism to part of it, the financial realities are that it could not account for all of the reasoning. Perhaps it might have something to do with the work being easy to come by? After all it’s not like the lawyer/firm has to go out and sell their services to corporates and other paying customers if they are taking on legal aid. Without question the ‘cost of sale’ is extremely low for a lawyer taking on legal aid (in fact, I suspect it is all but $0.)

Incidentally, this non-existent ‘cost of sale’ component would go a good part to explaining why rates are lower for legal aid (or higher for fee paying clients – depending on what perspective you choose to look at from.)

As regards the revenue statement, I don’t think anyone was in doubt over that. However, before just glossing over it as being a figure that is somehow wolrds apart from the actual profit or personal income, it would be necessary to delve into legal aid statistics to determine the nature of the lawyers/practices that take on such work – are they large firms/partnerships (therefore large associated costs) or small partnerships or sole practitioners (therefore likely much lower associated costs – overheads, staff, etc)?

@ F E Smith: does a lawyer really have to believe in justice or the rule of law? I don’t see where that really comes into our job.

Lawyers and Conveyancers Act 2004, s 4:

4 Fundamental obligations of lawyers
Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:
(a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:
..

F E Smith

wreck1080:

I will disagree with you completely. Most lawyers earn under $100,000 per year.

Very few earn over $1 million as personal income and I would be surprised if any of them are undertaking legal aid work. Don’t make the mistake of thinking that gross income from Legal Aid is the same as personal income.

GPT1

Wreck – fuck I wish. And legal aid has become a much higher proportion of most lawyers fees because the last government extended the eligibility and you have to advise potential clients they are eligible.

That’s a rather uncharitable approach to the rule of law. The Canterbury Earthquake Response and Recovery Act went the all the required processes to get enacted, but that doesn’t mean it isn’t antithetical to the rule of law.

In more common practice, just following on with the processes set down in the Criminal Procedure (Mentally Impaired Persons) Act would lead to a great deal of injustice. I don’t know whether you’ve gone through it often (I imagine you must have – approximately 5% of the prison population is intellectually disabled), but it’s an appalling piece of legislation almost designed not to work.

F E Smith

It was still enacted by Parliament, which is sovereign (apparently). Therefore it must be ok, surely. In fact, most people don’t seem to have a problem with the Earthquake Response Act, and the CP(MIP)A is usually only relevant to me when I want a report done. But, you are right, it is a dumb bit of law. But if Parliament sets down a set of rules and procedures that, when followed properly, come to a particular result, how can that really be an injustice?

For example, most of the defences relating to drink driving have been removed by Parliament over time to stop us challenging the results of the test, the procedures and so on. Is that unjust or against the rule of law?

I dunno. As I said, I just follow the rules. The why’s are not my problem.

burt

If the guy is a Labour candidate then surely he should be out campaigning to increase taxes and reduce his income to that of a beneficiary… Oh that’s right – Labour party members are special and their rules are for others…. Move on.

GPT1

queenstfarmer – “there is no doubt that the legal aid system is a rort” – simply saying something does not make it true. Please provide your evidence of this rort – something Dame Beazley failed to do – or stfu.

alex Masterley

It was still enacted by Parliament, which is sovereign (apparently). Therefore it must be ok, surely. … if Parliament sets down a set of rules and procedures that, when followed properly, come to a particular result, how can that really be an injustice?

Because those laws may be unjust: violating fundamental aspects of the rule of law, for example. By creating retrospective imposition of criminal liability, or by being a bill of attainder, like the SST wanted the other day.

GPT1

Queenstfarmer – specific examples, which we all support being dealt with (and have been frankly ignored by the LSA for years), are not evidence of the system being a rort as you claimed.

And linking to anything Power says undermines any argument. He whinges about legal aid costs going up but ignores the fact that government increased the eligiblity, that there are more police (with more arrests), a significant increase in the reliance on experts (I had the crown file an “expert” report from some Criminal Minds wannabe that other day which basically said that because the sky was blue at the time of both alleged offences they were similar) and an increase in length of trials.

Putting the boot in about legal aid and raising the spectre of incomptence and rorting lawyers is easy political mileage but to treat the entire profession and all legal aid lawyers with such contempt is dishonest.

F E Smith

can you not read, queenstfarmer? I said that for FIRMS the profit margin was under $10 per hour on legal aid. I will fill in what I missed, in that the figure I have quoted applies to the majority of criminal legal aid cases, which is what the study was done on.

A firm is not a barrister. They have different costs and different dynamics in play. And you obviously have no idea of the vast range of incomes (not salaries, as barristers are self employed) among those at the bar.

And GPT1 and Alex are correct in their pronouncements on the Bazely review and with regards anything Power says. The review was unable to find clear evidence of fraud. The ‘perhaps 200’ number that Bazely mentioned at her press conference when releasing the report was a guess but was quickly trumpeted as fact. Considering that there are only 300 or so criminal legal aid lawyers who undertake something like 70% of the work (under 3% of the legal profession doing 70% of the legal aid work means most of the profession has nothing to do with legal aid) means that Dame Margaret thinks most criminal legal aid lawyers are committing fraud. Her review contains no, I repeat, no evidence of that. The report, while having some very good and well made points, has nothing other than anecdote on the issue of legal aid being a ‘rort’. In fact, the Legal Servces Agency and then the Courts came in for the most criticism.

Grame, I had missed the SST article, but I am not sure they wanted a bill of attainder passed. I think you meant the retrospective bit, in which you are correct that it is unjust. But if Parliament applies pure Diceyan principles, is that not only acceptable but also legal, and therefore complying with the rule of law as classically stated, rather than the modern conceptions of it? Anyway, the concept of justice is subjective and therefore what you and I think is unjust may not be thought to be unjust by others, most importantly by Parliament.

queenstfarmer

GPT1, I’m not putting the boot into the profession. Far from it. The legal aid system is the rort – that’s my view, just like you have yours re Power and Bazley.

F E Smith, the gp and I were talking about barristers, you switched it to firms, I switched it to barristers again – no harm done. My question re the alleged “$10 profit margin” remains: profit margin after what? Just askin’.

alex Masterley

qsf,
If the legal aid system was a rort there would be a queue a mile long of people trying to get in on it.
The reality is that it isn’t and there aren’t and in some areas there are no lawyers wanting to do the work.
when i was involved with law society stuff 3 years ago, this issue was a real concern, and nothing has changed now.

Chuck Bird

I can think of some ways of cutting down on legal aid for career and/or violent criminals. If criminals who appeal a reasonable or even lenient sentence were given extra time for a frivolous appeal they might be less inclined to have a second bit at the cherry at taxpayers expense. I am think particularly of vicious killers sentenced ot life with a 20 NPP. The argument is that some other scumbag committed a more vicious murder and only got 18 NPP. When they complain that it is not fair they should be told life is not always fair. Do they they think life was fair to the victim and his or her family?

F E Smith

queenstfarmer- but you still haven’t elaborated HOW the legal aid system is a rort. That is what GPT1 asked.

With regards the $10 profit margin, there is a formula (which I can’t find right now, it is somewhere in all of my paperwork on this) that sets out the average costs for firms. Those costs are (from memory) up close to $100 per fee earner per hour on average. For FIRMS (they don’t do it for barristers becuase our costs can range from just the rent to a full 20-25% of our fees depending on the chambers) the profit margin based on the costings is about $10 for an average case. Most criminal legal aid cases in NZ are PC1 cases (the lowest category getting the lowest pay $92, $96 or $106 per hour excluding GST, up to a normal maximum of 5 hours prep time plus whatever hearing time is required, or for a guilty plea a flat fee of $220, $269 or $293 depending on when it takes place) and the average bill for those cases is under $1000 per case. Profit margin is calculated after you take out the firms expenses, just like you would in every other business. Staff, office costs etc.

F E Smith

Chuck, almost nobody appeals a reasonable or lenient sentence. Appealing a reasonable sentence generally doesn’t work, and appealling a lenient one runs the risk that the sentence will be increased. That is why it is so rare. Of course, you haven’t defined what reasonable or lenient is. For lawyers, we look at the guidelines set down by the Court of Appeal to determine if a sentence is harsh, reasonable or lenient. What the public thinks of it may be entirely different, but it is the Court of Appeal’s opinion that actually counts in this case.

The problem with your solution (which I think has strong support from Stephen Franks and possibly ACT) is that if you actively try to deter appeals with the threat of tougher sentences for failing, then people with genuine reasons to appeal will be hesitant to do so because of that risk.

Anyway, the 2008 CA report shows 493 criminal appeals, with about a 1/3 success rate, so we aren’t talking a lot when you think of up to 50,000 grants of criminal legal aid per year in recent years.

Bevan

GPT1

I think Bevan is referring to QSF’s pronouncements (now his opinion) on rorts.

By your analogy Viking2 we should get rid of police and hospitals. No reason why we should pay for someone else’s costs. Oh and if you do arrest someone intefering with your property or person you should have to pay the court costs to prosecute them as well?

Nookin

When I was in the system, the thing that was particuarly galling at the Magistrates Court ( yes it was a while ago) and the District Court was the totally unnecessary Not guilty pleading to spin out appearances and after getting all the witnesses to Court etc a change at the last minute. This is the sort of behaviuor that has given legal aid such a bad name, abuse by a very small minority. As everyone of those witnesses go away thinking the system is totally flawed .

We do need the system in NZ, its just a shame that so many on the roster are not up to the level to give clients reasonable service.

I have always said a great mitigation speaker is the most valuable thing anyone facing minor to medium charges can have.

GPT1

90% of charges are dealt with by a guilty plea so the spinning out thing, whilst present at times, is overstated. Other thing is don’t assume just because some poor turkey has to take an impossible case that the lawyer has not told their client, in no uncertain terms, that they are completely screwed and they should face up to reality.

The Bazely report was the response to a need to lessen the cost of Legal Aid. The Criminal lawyers were the target, TOW lawyers were allowed to go on their merry rorting way. In targeting criminal lawyers the QUALITY of service was not examined; no client was interviewed to assess their satisfaction with the service. And now the Justice Dept. wants a select group of lawyers to roster so that clients take the first on offer and are not able to choose their representation – perhaps Mr. Bott could look at this.

Right of way is Way of Right

Dear Mr Bott.

I would be happy to come and fill those forms in for you, I have very neat handwriting, and very good keyboard skills. I also would be happy to liase with those whom you represent in order to ascertain the details required to complete the afore mentioned forms, and ensure they are submitted in a timely manner.

For this service I would be happy to claim a simple 25% of the fees paid.

This would give me an annual salary of about $85,000, which is well above what I am currently earning. Plus this would give you more time to get more clients, resulting in a increase in cashflow for both of us.

I stated ………..people leave with the impression……..very small minority etc etc ..

Not facing reality is probably why the majority are in Court in the first place

Also those 10% of not guilty pleas amount to thousands of matters over a year which is why there is presumably still really unsatisfactory waits for hearings, bearing in mind this should be about the victim.

One question though, why is the ..art of talking in mitigation for the client after a guilty plea not used more? or is it well, might as well run this and see if we get lucky. Because its bloody near impossible to get sent to prison in NZ until your convictions are well into double digits.

queenstfarmer

F E Smith (re firms), the vast majority of NZ law firms are actually sole practitioners. Then there are a lot of 2-3 partner firms. So in many cases the “staff costs” – the major part of the cost – is the partner’s profit (howsoever described). Suggesting that there is only “$10 profit” when most firms work that way is somewhat artificial.

you still haven’t elaborated HOW the legal aid system is a rort

The links I posted. As GPT1 said, they had been “frankly ignored by the LSA for years” – no argument from me there. Second, I know this site allows long posts, but I don’t quite think it would accept the Bazely report in its entirety. So I will simply have to refer to it.

tarrant

As a lawyer who does criminal legal aid work I would observe with respect to “the spinning out thing:”

1. I know this sounds ghastly, but under the Bill of Rights, a person has the right to be presumed innocent until PROVEN guilty – which gives each and every accused person the right to “put the Crown to proof” – if they wanted to. Every single defendant has that right, technically speaking. Can you imagine what would happen if every defendant exercised it? The fact that 90% of people end up pleading guilty is down in large part to the profession (including duty solicitors) advising clients of the realities of their cases, the evidence against them, benefits of an early guilty plea etc etc. Without that advice, the whole system would grind to a halt.

2. It might seem awful that a case gets to the point of a trial/defended hearing and the defendant changes their plea at that point. An ignorant response is: “why didn’t they do it earlier?” Plenty of reasons – which do not necessarily amount to “gaming the system.” We have an adversarial legal system which involves tactical maneuvering on the part of both the defence AND the prosecution. Developments may occur between first call and trial which result in “late” guilty pleas. So many variables are involved. A defendant may have an arguable defence which largely rests on their own credibility versus a witness’s credibility – but for psychological and emotional reasons, they may not be able to face taking the stand on the day, and wish to change their plea. Or the client might have an unrealistic sense of their own case – sometimes the only way for the reality to hit home is for the case to get to trial. So many civil cases settle right at the courtroom doors for the same reasons! It’s called reality hitting home. Reality which lawyers may have tried to communicate earlier to their clients, but to no avail. And to be fair, prosecutors frequently withdraw charges on the day of the hearing when the case was weak right from the start, and could have been pulled at an earlier date eg at Status Hearing.

3. Spinning out cases to defended fixtures for extra cash is mostly a myth. That’s because a legal aid lawyer can often make the same amount of money by doing a guilty plea and sentencing. Putting a case off a few times can actually be counter-productive, economically.

GPT1

As Tarrant notes – Never underestimate a looming trial date to bring a dose of reality – to both sides.

There is also the impression that it is only defence lawyers who “stretch things out”. The Police are as bad – whether it is tardy disclosure, not preparing briefs or my pet hate – not looking at the merits of the case until the day before. I must start counting but it would be close to 50/50 in terms of GPs on the day vs applications to withdraw. Hell, I had a case recently where I spelt out, in writing, the complete failures in the police case. We went to court and after the first witness the Judge politely inquired of the prosecuting sergeant as to where the alleged crime was. Six wasted months.

The implication in both the newspaper article and this comment it is a bit misleading and shows a misunderstanding of how legal aid works.

Misunderstanding? How charitable of you, FE.

For my part, I chuckle at all these lunkheads baying about “greedy lawyers” and joining GPf (and his political masters) in denigrating and discrediting them.

For tomorrow they’ll be along here complaining about some abuse of power or of the law. And when you’re on the receiving end of that abuse (almost always perpetrated by the state), to whom do you turn to protect your interests…?

Well done, suckers. Playing right into the hands of those whose agenda is the erosion of your rights…

F E Smith

F E Smith

GPT, I long ago formed the opinion that the Police are responsible for at least half of the delays in cases and I know that a number of Court staff in several courts agree with me when I raise it with them privately.

Of course, one cannot blame the police, so we must lay the entirety of the blame on the defence.

GPT1

A senior and highly respected registrar told me that they always thought lawyers held things up until they started running pre trial hearings and then realised it was the police at least as much. Often as not it is unavoidable, or at least understandable/unintentional but it seems when defence ask for an adjournment is some nefarious plot and when police do it is in the greater cause of justice.

GPT1

Blonde and Proud

So the guy is currently earns $350,000 from legal aid plus whatever by paid clients and he’s willing to take a SERIOUS paycut to become a first time MP? Perhaps he does have some morals, taking a less money for something he believes in? Time may tell…………..